136 F. Supp. 3d 167
D. Conn.2015Background
- Beverly Hills Suites (the Hotel) and its principal Sharok Jacobi hosted concerts, parties, and swingers’ events from 2007–2010 that generated frequent police calls for noise, fights, and at least one shooting; Liquor Control and the Fire Marshal also investigated and temporarily closed portions of the premises.
- Liquor Control agents conducted an undercover inspection of a November 8, 2008 swingers’ party and observed public sexual activity; agents also received photos from a complainant (later identified as John Moylan) showing prior alleged sexual activity.
- Based on Liquor Control’s observations and interviews (including a promoter’s statement that Jacobi knew of the parties), Detective Rachele swore an affidavit and a state judge issued an arrest warrant for Jacobi (charges later dismissed).
- The Hotel alleges constitutional violations under 42 U.S.C. § 1983: First Amendment (free speech/association), Fourteenth Amendment equal protection and procedural due process (selective enforcement/pressure leading to shutdowns), Fourth Amendment (warrantless searches/seizures), municipal liability, and state constitutional claims; Jacobi separately alleges false arrest and malicious prosecution.
- The Court granted summary judgment for defendants on all claims, finding (inter alia) the swingers’ sexual activity is not protected speech/association, no admissible evidence that police chilled concerts or improperly pressured other agencies, police had probable cause for the arrest warrant, and many police entries were to public areas or were responses to calls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment — swingers’ events (speech/association) | Hotel: enforcement targeted events and chilled expression/association; economic harm from closures | Defs: sexual acts observed are not protected expression; enforcement targeted liquor/code violations | Held: sexual conduct (oral sex, masturbation, exposed/fondled genitals) is not First Amendment protected; association claim fails (commercial relationship) |
| First Amendment — concerts (speech/association) | Hotel: police actions (road closures, false statements, blocking parking) interfered with concerts, harming revenue | Defs: concerts are protected but record contains no admissible evidence police prevented attendance; closures were result of Liquor Control/Fire Marshal or lawful police responses | Held: no admissible evidence that Defendants chilled or prevented concerts; claim fails |
| Equal protection (selective enforcement) | Hotel: targeted because events attracted young African‑American/Hispanic patrons; other venues tolerated same events | Defs: no evidence other similarly situated venues existed or received different treatment; Hotel drew more police attention for volume and incidents | Held: plaintiffs failed to identify similarly situated comparators or proof of discriminatory motive; claim fails |
| Procedural due process (closures/shutdowns) | Hotel: Defendants caused shutdowns (liquor/fire) without process, depriving property/liberty | Defs: Liquor Control and Fire Marshal independently ordered suspensions/closures per code; emergency shutdowns lawful | Held: no evidence Defendants improperly influenced independent agencies; shutdowns lawful and not a due process violation |
| Fourth Amendment (warrantless searches/seizures) | Hotel: Rachele’s unannounced visits/searches and blocking access were warrantless and unreasonable; arrests were fruit of poisonous tree | Defs: many visits were in response to calls or in public areas (bar, lobby, front desk) where no reasonable expectation of privacy existed | Held: no admissible proof of unconstitutional nonconsensual searches of private areas; alleged seizures not shown; claim fails |
| False arrest / malicious prosecution (Jacobi) | Jacobi: affidavit omitted material facts (informant identity, doctored photos, lack of outward public activity) so no probable cause | Defs: affidavit contained reliable information (undercover agents’ observations, promoter’s statements); omissions were immaterial or unknown to police at the time | Held: probable cause existed based on Liquor Control agents’ observations and other information; false arrest/malicious prosecution claims fail |
| Municipal liability (Town) | Hotel: Town policy/custom, inadequate training, and First Selectman involvement caused violations | Defs: no evidence of policy or training failures; isolated officers’ conduct insufficient | Held: plaintiffs offered no evidence of municipal policy/custom or causation; municipal claim dismissed |
Key Cases Cited
- City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (nudity/sexual conduct is not inherently expressive for First Amendment purposes)
- Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) (sexual activity and prostitution not protected expression)
- FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (regulatory context for sexually oriented businesses; limited First Amendment protection)
- Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) (live entertainment falls within First Amendment, but content/context matters)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standard and burden of production)
- Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) (property/liberty interests defined by state law)
- Parratt v. Taylor, 451 U.S. 527 (1981) (pre/post-deprivation process and emergency procedure context)
- Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) (municipal liability: policymaker and final decision‑maker principles)
- Zalaski v. City of Hartford, 723 F.3d 382 (2d Cir. 2013) (probable cause standard discussion)